ML20155G867
| ML20155G867 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/05/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20155G866 | List: |
| References | |
| ALAB-901, OL-3, OL-5, NUDOCS 8810180064 | |
| Download: ML20155G867 (19) | |
Text
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OnctMT flUMBER
.g.g NiOD. & UTIL F AC.
f
?k LI LCO, October 5, 1988 T6 G:T -6 All M8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,7 ggfpre the Commission l
In the Matter of
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(
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL i
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(Shoreham Nuclear Power Station,
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Unit 1)
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14NG ISIAND LIGHTING CONPANY'S PETITION FOR REVIEW OF ALAB-901 AND FOLIDN-ON_ ORDERS LILCO petitions the Commission, pursuant to 10 CFR $ 2.786, to review and reverse three related Appeal Board orders in the Shoreham emergency planning case:
ALAB-901, 28 NRC (Septem-j ber 20, 1988), and two follow-on issuances (Order, September 27, i
I 1988; Memorandum and Order, September 29, 1988), on the ground that they are incorrect on important grounds of law and Commis-l sion policy.
The first of these orders, ALAB-901, retroactively redefines j
the authority of the genernl-jurisdiction emergency planning Licensing Board (the "OL-3 docket" Board) in the name of "effec-tive case management," so as to oust it of authority over the 1988 Shoreham exercise; and vests that jurisdiction instead in
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the defunct "OL-5 docket" Board, which had disbanded (without Appeal Board dissent) in March 1988 after completing its sole, and now moot, function of hearing the 1986 exercise. LBP-88-7, 27 NRC 289 (1988).
The other two orders (September 27 and 29) draw on i
ALAB-901's erroneous constriction of the OL-3 Board's juris-f diction. They separate and set for expedited briefing and decis-i ion the issue of whether the OL-3 Board had authority, in its i
0010180064 881005 PDR ADOCK 05000322 i
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' Concluding Initial Decision of the previous week, LBP-88-24, 28 NRC (September 23, 1988), to impose sanctions that had ef-facts outside its (retroactively constricted) jurisdiction l
1.e..,
whether the OL-3 Board had authority to dismiss governmen-tal Intervenors (Suffolk County, New York State, Town of South-l ampton) from the shoreham licensing proceedings generally.
Both of these orders, briskly issued (in one case ex carte),
j are ostensibly founded on the unimpeachable policy of "effective case management" in a complex proceeding.
But their combined effect is to fragment this case needlessly, prejudice its out-come, and (in the case of the ex carte September 27 order), deny
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due process.
The significance of these three orders becomes plain when viewed against the history of this case, including recent events.
l The relevant history is sim.le:
except for the 1986 Shorehan s
i emergency planning exercise (which the Commission provided for j
separately in CLI-86-11, 23 NRC 577, 582 (1986)), all Shoreham 1
emergency planning litigation has always been and remains within the jurisdiction of one Licensing Board, that in the "oL-3"
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docket.
(Issues relating to the 1986 exercise had been heard and
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decided in a separate "oL-5" sub-docket. )
The relevant recent events are equally straightforward:
I within the past month FEMA has issued a deficiency-free Post-Exercise Assessment of Shoreham's June 7-9, 1988 exercise and has found that the Shoreham emergency plan, as demonstrated in the June 7-9 exercise, now provides reasonable assurance of protec-l tion of the public health and safety.1 And the generai-jurisdic-tiun OL-3 Licensing Board has issued its concluding Initial
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Decision on Emergency Planning, deciding all remaining emergency j
planning issues favorably to LILCO on the merits, dismissing the
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1 'Ihe Post-Exercise Awe =Jnt (Septater 2,1988), and the ID'A Region 2 FAC Report on the Shoreham offsite Energency Plan (reviewed through Revision 10)(Septater 8,1988) were forwarded to the NRC, along with FDWs official reasonable-assurance finiing, by letter frtra Grant C. Peterson (FD'A) to Victor Stello, Jr. (NRC) on Septa ber 9,1988.
I governmental Intervenors from the proceeding as a sanction for sustained and repeated misfeasance, and authorizing issuance of a full power operating license.
LBP-88-24, supra.
Together, the three Appeal Board orders drastically affect l
the licensing prospects for Shoreham.
Because they are incorrect as a matter of law and policy, because they misapply the concept l
of "offective case management," and because they have dire por-p tents for completion of the Shoreham case, LILco requests tne l
l Commission to review them.
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1.
Sn===rv of the Actions of Which Review is Souaht l
ALAB-901, issued just three days before the concluding I
Initial Decision in the emergency planning case, LBP-88-24,
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2 grants a motion filed directly with J.t by Intervenors to appoint some board (other than the OL-3 Boaed) to try matters relating to the 1988 Shoreham exercise, even though there was pending at the j
time a Staff motion before the OL-3 Board to set an exercise i
l litigation schedule.
In ALAB-901 pre-emptively strips the OL-3 j
Licensing Board of jurisdiction over the 1988 exercise, places it f
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2 Intervenors' Mation for Arpointnant of Licensing Board with Jurisdic-
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tien to Hear Exercise Issues was filed directly with the 8(real Board on i
Septerber 13. 'Ihis motion cIVssed and was intended by Intervenors to pre-wpt a motion oy the Staff, dated Septerber 9, asking the OL-3 Licensim Ebmi l
I to set a schedule for any litigation which might be n-M on the 1988 l
exorcise. Intervenors conterded that sirce 1986 exercise issues still lingered i
before the Appeal Board it, rather than the CIr3 Licensin; Board, hvi juris-l diction to determine the structure of litigation relating to the 1988 Exer-cise. 'Ibe Appeal Baard accepted that t in AI.AB-901. The Staff's I
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notion with the OIr3 Board is still
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~4-instead in the defunct 3 "0L-5" sub-docket, and implicitly rein-states the previous "oL-5 docket" Board's membership.4 5 3 2e OL-5 Licensing Board has been out of business as a practical matter for nearly seven nonths. After reaching decisions on the smpe of the February 13, 1986 exercise (IBP-87-32, 26 NRC 479 (Decenbar 7,1987) (aff'd as to results AIAB-900, 28 NRC _ (September 20, 1988)) aM LIIcD's performn::e in it (IN-88-2, 27 NRC 85 (February 1,1988) (ay1_ pending)), and after receiving cxrments frca the parties, the ole 5 Board concluded that it lacked authority frun the conmission to determine mattars relating to remediation of the February 13, 1986 exercise. IBP-88-7, 27 NRC 289 (Marth 9,1988). It noted that it had not been given the power to reach ultimate licensing fiM-ings. It also +aarved that more than two years had passed since the February 13, 1986 exercise aM that that exercise oculd not be used, therefore, as a licensing basis absent an exemption frun the two-year limit of 10 Cm Part 50 Appendix E 1. IV.F.1. Se OIe5 Board also suggested that even if an exerption could be obtained, it might be more sensible for LIIco to corduct a ccrpletely irdependent exercise as a basis for licensing than to try to renedy perceived defects in the 1986 exurcise. In that event, the OIe5 Board ccocludM, the Ctanission could delegate to it further authority if it wished to do so. E.
292. With that, the OIe5 Board concluded that its mMate frun tne Carrtission under CLI-86-11 did not extend to jurisdiction over renadial measures, ard it ceased to function thereafter.
23 NRC at 291-92. No party appealed frun that decision ard the 4real Board did not exercise its sua sconte review powers at the tire. Indeed, the Appeal Board has since ventured that the "1986 exercise is apparently without significarce vis-a-vis license issuarce," and that issues relating to it are technically root. AIAB-900 (slip cp. at 7).
4 2e Appeal Bcard acknculedges that appointnent of licensing bonds is a mtter within the discreticn of the Ctrrtission ard the Quirmn of the Licen-sin] Doard Panel. AIAB-901 at 7 (slip cp.). Apparently for that rearn, AIAB-901 pemits the Licensing Bostd Fanel 01airmn to "reconstituted" the OL-5 Board in his discretion. M. at 10.
Barring any such intervention by the Licensing Ibud Panel Chairmn, however, the Appeal Board has en_Wed in dictating not only the docket but the crrposition of the Lbard to hear 1988 exercise issues. We CIe5 Board consists of Judges Frye, Paris and Shon (kho is also on the CIr3 Board). %e Ccrisissico should rote that on october 3 LIIID filed a motion with the Atanic Safety and Licensiny Board Chairn\\n, requestiny him, on the crn11 tion litigation were to take place on the 1908 exercise notwithstandin; IEP-88-24, to reconstitute the CIe5 Baud's nember-ship to mke it the same as that of the existing OIe3 Board.
5 We cypxtunity presented by AIAD-901 was not lost on the former CIe5 Daard.
Alncst irraliately, on Septater 22 and without awaiting any confirm-tion of its charter frun the Chairmn of the Licensing Band panel, the CIe5 thud staked its jurisdictioral claim by issuiny an Order setting an eight-week schMule for subsittiny contentions and responses ard gettin3 to a pre-hearing conference on Novcrter 16. 20 OIe5 Ehud's order is dated the last day before the CIe3 Band, by resolving all remining issues in its Septeder 23 (brcludiny Initial Occisien, boca.e available to hear any neswy 1988
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The Appeal Board's follow-on orders of September 27 and 29 1
extend the reach of ALAB-901.
The ax parte September 27 Order I
summarily grants a motion (with attached brief on the merits) of the same date from the by-than-dismissed governmental Interve-i j
nors, for separate, radically expedited appeal of one isr,ue from LBP-88-24, which the Appeal Board characterized as narrowly l
1 jurisdictional:
whether the "0L-3" Licensing Board had authority j
to impose sanctions extending to the entire proceeding, or whe-ther its sanctioning authority was confined to the diminished OL-3 docket (as narrowed a week before in ALAB-901).
Under the l
September 27 Order, LILCo and the Regulatory Staff would have l
l been allowed three days, until September 30, to respond to Inter-l l
venors' brief on the merits.
On September 28 LILCo asked that l
the response period be extended to ten days.6 on September 29, l
the Appeal Board issued a Memorandum and order rejecting each of l
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LILCo's bases for an extension and allowing LILCo and the Staff l
an extension only to Tuesday, October 4 to. reply on the merits to l
Intervenors' September 27 brief.7 The September 29 Order also l
criticized LILCo for failure, in its September 28 motion for
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enlargement of briefing time, to agree that the issue was a j
"narrow jurisdictional" one, and justified its deptember 27 actions in the name of "casa vanagement" and "the unique proce-i dural posture of this proceeding." Id. at 5 & note 5.
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1 2.
Basis in Appeal Board Proceedings j
For Issues _Under Review
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exercise issues.
l 6 This is the nonul period of time allowed to regsd to a ration.
10 CFR 5 2.730(c). Parties are nomally allcNed 30 days to respord to briefs on j
the merits frun Lice aing Boani decisions.
10 CIR 5 2.762(c).
I 7 LIW's brief, supportin the OL-3 Board's jurisdiction to protect the i
I inta3rity of the orrtission's pr-a by issuing samtiens affecting an entire I
peiing, if mM, was filai en Octcber 4.
So was a brief frem the f
Staff, which arrived at the are legal conclusion as LIlfo tut also un;cd the Ameal Board to review the avrtions iriceed by the OL-3 Scant on the merits, i
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-C-TPu errors of law or policy or both of which LILCO seeks review are summarized immediately below, along with the places in the proceedine-below where (to the extent opportunity was pre-sented) they were raised:
A.
The Appeal Board Erred in ALAB-901 in Not Allowing the OL-3 Licensing Board to Determine Whether It Possessed Jurisdiction over Any 1988 Exercise Proceedings LILCO opposed Intervenors' September 13 motion on the grounds, among others, that it should have been addressed ini-tially to the Licensing Board in the OL-3 docket, since that Board had ju'tisdiction over the 1988 exercise (at least in LILCO's view) and had a pending Staff motion before it, and that the Appeal Board lacks independent power to appoint licensing boards.8 The Appeal Board disagreed.
In doing so, it erred, misap-plying two previous Appeal Board cases that hcd not been cited anywhere by any of the parties.
Citing its "inherent right" to determine in the first instance the bounds of its own jurisdic-tion, and its "incidental authority to direct such other action as may be appropriate in the circumstances," the Appeal Board rejected LILCO's suggestion that it dismiss the Intervenors' motion.
A LAB-9 01, slip op. at 2-3, citina Duke Power Co.
(Per-kins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980); id., ALAB-597, 11 NRC 870, 874 and n.9 (1980).
The Appeal Board's action in ALAB-901 is squarely contradic-tod by the very rulings in Perkins that it cites.
In Perkins, a prospective intervenor filed a petition to intervene with the Licensing Board.
The Staff filed its response with the Appeal i
Board, claiming that the Licensing Board had lost jurisdiction to f
entertain the petition when it issued a partial initial decision.
Perkins, A LA B-591,
'l NRC 742.
The Appeal Board refused to
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8 LIICO's Response to Intervencrs' Motion for Appointment of a Licens!Jg
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Doard with Juriediction to Hear 1988 Exerciso Issues (Foptember 16, 1988) at 5-6, 8.
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. consider the Staff's "improvidently filed" response and referred it to the Licensing Board, relying on the "Well-settled rule" that an appellate body should not pass initial judgment on the jurisdiction of c lower tribunal to decide a matter that has been placed before that tribunal by another party:
it is for the Licensing Board to ensider Ab initio whether it is empowered to grant relief which has been specifically sought of it.
Every tribunal -- whether judicial or administrative -- possesses the inherent right (indeed, the duty) to determine in the first instance the bounds of'its own juris-diction.
ALAB-591, 11 NRC 742, gitina United States v. United Mine Work-gr.g, 330 U.S.
258, 292 n.57 (1947).
The Appeal Board stated that "even if wholly meritorious, the staff's jurisdictional assertions must originally be given consideration by the Licen-sing Board."9 1.d. at 743.
This is precisely what the Appeal Board precluded in ALAB-901.
Under its own precedents in Perkins, the Appeal Board should have referred the Intervenors' September 13 motion to the Licens-ing Board for a ruling on the jurisdiction question (and, if the Licensing Board decided it had jurisdiction, a ruling on the merits).
The Appeal Board should have considered the question only upon a "no jurisdiction" determination by the Licensing Board or upon proper appeal of the Licensing Board's merits ruling.
Further, the Appeal Board erred in concluding that its general jurisdiction over the appeals from the 1986 exercise (ALAB-901 at 4-6) gave it, rather than the Licensing Board, jurisdiction generally to establish the structure of any litiga-9 In AIAB-597 the Appeal Board went e.ven further. Upon referral of the Staff's response frczn the Appeal Board. the Perkins licensinJ teard had deci-ded the jurisdictional question but ncr.: ti.e merits, waitirg instead for an Appeal Board ruling either confirming c overruliry its jurisdictional deter-nination. 29 AIAB-597,11 NRC 870, 873 (1980). 'Ihe Appeal Doard rulcd that, once the Licensing Doard detemined that it had jurisdiction to hear the mtter, it should have proceedcd to pass u1 the merits as well. Id.
. tion on the 1988 exercise.
The Appeal Board's conclusion relies on the overly broad equation of the two exercises as involving "LILCO's compliance with the agency's pre-license exercise requirement" so as to provide a "reasonable nexus" between any proceedings on the two exercises.
Id. at 4-6.
The Appeal Board's finding of a "reasonable nexus" between the 1986 and 1988 exercises is without foundation either in the papers before it or in the record.
Some "nexus" might exist if the 1988 exercise were cast merely as a remedial exercise to demonstrate correction of deficiencies found in the 1986 exer-cise.
But it was not. The fact is that litigation delays stripped the 1986 exercise of utility as a basis for licensing (even with remediation), absent an exemption. The three-day 1988 exercise was designed and implemented as a stand-alone demonstra-tion of compliance with Commission and FEMA requirements, not as a remedial for the 1986 exercise.
It bears only the most general relationship to the 1986 exercise.
More basically, the fundamental analytical nexus is between the exercise and the emergency plan 10 whose then-effective ver-sion it implements. Had the Appeal Board posed to the parties the issue of the most reasonable nexus to the 1988 exercise before ruling in ALAB-901 -- which it did not -- that nexus would have been between the exercise and the shoreham emergency plan, Revision 10.
10 Licenses are issued or denied on the basis of a= wa= ment of the ade-quacy of emergency plans. Exercises are merely tests or illustrations of the ability to inplement those specific versions, or revisions, of emergency plans in effect at the time of the exercise. Exercises at different times test different revisions of those plans. We 1986 exercise, for exanple, was linked to Revision 6 of the Shoreham emergency plan; the 1988 exercise was ljnked to the substantially different Revision 10.
Put another way, if the At. peal Board's "reasonable nexus" test is relevant to how to assign jurisdic-ticn anxig licensing boards where more than one possibility exists, the most reasonable nexus is that between exercise and current plan revision; it is certainly more powerful than chat between present exercise of present plan and moot exercise of obsolete plan. %e Arceal Board's consianment of 1988 exer-cise litiaation to the OIe5 docket based uDon its findim of a "reasonable nexus" between the 1986 and 1988 exercises misarolies that test. %hich it set uD itse1f in AIAB-901.
. B.
The Appeal Board's Holding in ALAB-901 That Licensing Board Jurisdiction over the 1988 Exercise Lies in the OL-5 Docket Conflicts with CLI-86-11 and Consistent Subsequent Guidance In ALAB-901 the Appeal Board rejected arguments, advanced by both LILCO and the NRC Staff,11 that the general-jurisdiction emergency planning docket, the "OL-3 Docket," was the proper forum for any litigation of the 1988 emergency planning exercise.
Instead, it found that the OL-5 Docket, created in 1986 for the specific and sole purpose of hearing issues in connection with the 1986 exercise,'was the proper forum.
This conclusion is inconsistent with nearly six years of history in this proceed-ing.12 Il LI E Response to Intervenors' Motion for Appointment of Licensing Board... (September 16,1988) at 3-6; NRC Staff Response to Intervenors' Motion for Appointment of Licensirg Poard... (September 16, 1988) at 2-5.
12 On May 13, 1983 a Licensing Board was establishcd specifically "to preside over the prWiry on all emergency planning issues" at Shoreham.
48 Fed. Rec. 22235 (1983). That Board has sat frcm the outset in the sub-docket designated as 50-322-OL-3. M.
The solo exception to this unitary jurisdic-tion evolved with respect tc the February 13, 1986 exercise. There, the N M ion directed appointment of a licensing board for immediate initiation of litigation of that exercise. CLI-86-11, 23 NRC 577, 582 (June 6,1986).
Even so, CLI-86-11 was issued in the OL-3 docket and directed that the Licen-sing Board consist of the same members as the Board that with jurisdiction over litigation of the emergency plan, if those members were available.
E.
The irplementing Order by the Chairman of the Licensity Board Panel, issued June 10, 1986, ccrrplied.
51 Fcd. Rec. 21815 (1986). At that point the Boards Juck es Margulics, Shon and for the exercise and the plan were identical:
J Kline. Only several weeks later, when "more effective docket management" required, was a separate "OL-5" sub-docket created by the Chairman of the Licensing Board Panel, but the panels' membership remained identical. Chame of Docket IWber (July 23, 1986), 51 Fed. Rec. 27296 (1986). Only later yet did schedule conflicts develcp that required reconstitution of the OIe5 Board so that its merberrhip diverged frce that in the basic OL-3 docket (Judges Fryo and Paris were substituted in the OL-5 docket for Judges Margulies and Kline; Judge Shon remained en both Boards). Notice of Reconstitution of Board (October 7, 1986), 51 Fed. Rec. 36619 (1986). Even then, the Licensing Board Panel Chairman made clear that "the reconstituted (OL-5) Board will preside only in the procr< dings related to the emergency planning exercise... ini-tlated pursuant *.o Ccumission Order CLI-86-11...." The original, OL-3 Board "will continue to preside in all other pr W ings pertainiry to emergency
. It is also inconsistent with the Commission's instructions in CLI-86-11, 23 NRC 577 (1986) on litigation of the 1986 exer-cise.
There the Commission manifested its concern for the con-tinuity of agency process by instituting what was then intended to be an expedited exercise proceeding in the OL-3 Docket, with a direction to "reappoint the earlier members of that Board if they were available."
CLI-86-11, 23 NRC 5677, 582 (1986).
CLI-86-11 was inherently limited in its direct effects to the 1986 exer-cise. To the extent that it addresses the subject of exercise litigation, it suggests that axercise issues were intended to be heard in coordination with, and not apart from, plan issues. And every step in the s0parate evolution of the OL-5 Board was predi-cated on the notion that its mandate was limited to the 1986 exercise.13 Finally, the Appeal Board's action is irreconcilable with the OL-5 Board's own views. As noted in footnote 3, suora, that Board concluded that its mandate from the Commission, deriving from CLI-86-11, did not convey jurisdiction over remedial mea-sures from the 1986 exercise, much less any independent successor exercise; and it observed that if the Commission wished it to assume further jurisdiction, it could issue appropriate further direction. LBP-88-7, 27 NRC 289, 292 (March 9, 1988).14 No party appealed this order. The Appeal Board did not exercise sua sconte review. All concerned had accepted the OL-5 Board's conclusion planning for the Shorcham Nuclear Power Station...."
Notice of Reconstitution of Boarti: Clarification (October 17, 1986), 51 Fed. Reg. 37682 (1986).
13 Soc footnote 13, supra.
14 In the socorx1 of its two decisions on the February 13, 1986 exercise, the Boarti had requested the parties' views on stether it should keep jurisdic-tion over any litigation of remedial exercises addressed to deficiencies swai in its decisions. IEP-88-2, 27 NRC 85, 213 (February 1,1988). 'Ihe Staff had suggestod such a course in its prcpocod findings. Is). LIICO con-curred in the proposal, explicitly premised upon the notion that an adequate remrxilal exercise could be held. Intervenors qacstiono:1 the Boarti's jurisdic-tion but fevored it as a matter of judicial econtray. 'Ihe Staff, having once apparently favored retention of jurisdiction, opposed it.
. until the Appeal Board's abrupt reversal of it, seven months after the fact.
ALAB-901 at 9 note 6 (slip op.).
C.
The Appeal Board Abused the Legitimate Tools of Docket Management to Define Jurisdiction (ALAB-901, September 27 and 29 Orders)
As the Appeal Board argues in ALAB-901, the "enormous size, complexity, and duration" of NRC proceedings has created a need for the simultaneous functioning of multiple licensing boards, each with partial jurisdiction resulting in partial decisions, as "practices... essential to effective case management."
Id.
at 4 (slip op.) Equally true, as the Appeal Board notes, "the Commission's Rules of Practice provide little or no aid" in resolving the "thorny" problems attendant upon such multi-board proceedings. Id.
However, there are limits on the Appeal Board's powers. The Commission possesses the initial authority to establish licensing board jurisdiction and the scope of proceedings themselves.
10 CFR 5 2.704, 2.721.
The commission, and the chairman of the Licensing Boa d panel, share the power to designate dockets for case management purposes and the power to name licensing boards.
Id., 10 CFR Part 2, App. A.
The Appeal Board serves many func-tions, but prime among them is not the definition of proceedings.
Against this background, it is useful to review the recent actions of the Appeal Board in the Shoreham emergency planning case, which, for all its subparts, is still one proceeding which must ultimately be capable of unitary resolution:
1.
It ousted the general-jurisdiction emergency planning board, the OL-3 board, not only of jurisdic-tion over any litigation of the 1988 Shoreham exercise, but of the opportunity to determine whether it had jurisdiction. ( ALAB-901) 2.
It vested jurisdiction over the 1988 exercise in a defunct licensirg board in a vestigial docket whose only remaining activity is a technically moot appeal, reversing the Board's self-abdication seven months earlier as "mistaken," though no party sought to appeal that action and it had not itself exercised timely EMA sponte review. (ALAB-901)
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It re-established the membership of the revived OL-5 Board, subject only to the intervention of the Chairman of the Licensing Board Panel. (ALAB-901) 4.
It used its own redefinition of the OL-3 Board's jurisdiction as a basis for accepting Intervenors' September 27 motion that it decide whether the OL-3 Board lacked jurisdiction to assess sanctions beyond that recently shrunken jurisdicticn.
The Appeal Board's erroneous acceptance of the proposition that this question is one of jurisdiction was given 32 carte, within about three hours of receipt of Inter-venors' motion requesting it and without notice to or solicitation of the views of other parties. (September 27 Order) 5.
It set, ex carte, a radically accelerated schedule for LILCO and the NRC Staff to respond to Intervenors' brief of this allegedly narrow jurisdictional issue.
(September 27, 29 Orders)15 6.
It relied upon a September 22 scheduling order, fleetly issued by the OL-5 Board which ALAB-901 had put back in business only on September 20, as a justifica-tion for rushing briefing and decision of its scope-of-sanctions issue. (September 29 Order) 7.
It relied on the "unique procedural posture of this proceeding" (which it recently helped to compli-cate) to justify its acceptance of Intervenors' Septem-ber 27 collateral attack on the OL-3 Licensing Board's decision to impose sanctions in LBP-88-3 rather than limiting them to seeking a stay of the Licensing Board's order. (September 29 Order at 5).
In toto, the Appeal Board's interrelated adjustments of the jurisdictions of two licensing boards, its ex parte acceptance of an issue as jurisdictional and as deserving radically accelerated review, and its apparent reliance on its own actions to justify further ones, go beyond the bounds of ordinary case management.
The commission should not permit this to happen, particularly in 15 LIlc0 and the Staff each filed their briefs on October 4, arguing that licensing teards nust have authority to levy sanctions, in proper cases, that run to the entire prumiirg, and not just to sub-prumiings within their direct charge. 'Ihe Appal Doani has not indicated any prcposed schedule for decision.
. light of the progress recently made in the resolution of numerous issues in this long-delayed proceeding.
D.
The September 27 and 29 Orders' Ex Parte Treatment of the Scope of the OL-3 Board's Sanctions as a Jurisdictional Rather than as a Merits Issue is Incorrect on the Merits and Denies LILCO Due Process In its September 27 ex carte Order, as noted above, the Appeal Board separated for expedited review the question whether the OL-3 Board had "jurisdiction" to dismiss Intervenors from the NRC licensing proceeding (not just the OL-3 subdocket),
rather than treating the dismissal as a merits decision to be reviewed in light of overall facts and circumstances. The Appeal Board also required LILCO'and the Staff to file responsive briefs on a greatly abbreviated schedule. On September 29, in response to LILCO's motion, the Appeal Board agreed to lengthen the brief-ing response time by four days but also took the opportunity to issue an after-the-fact rationalization, in the name of effective case management, of its ex carte September 27 Order. September 29 Order at 5 & note 5.
The Appeal Board's actions here were substantively incor-rect: both LILCO's and the Staff's briefs, filed with the Appeal Board on October 4, demonstrate that there is no jurisdictional limitation on the authority of licensing boards in multiboard proceedings to impose sanctions that impact the entire licensing docket, where facts and circumstances warrant. Thus the issue is not a "narrow jurisdictional" one, as the Appeal Board accepted on Intervonors' ex carte representation, but one of facts and circumstances where reviewing courts afford substantial deference to the trier of fact.16 j
Classification of an issue as one of jurisdiction rather than as one to be decided on the facts is important in litiga-l 16 & LIW's Annur to Intervenors' Brief on Bifurcated Appeal (October 4,1988), esp. at 2-5; NRC Staff Response to Intervenors' Motion for Difurca-tion of Appeal and Expedition (October 4,1988), esp. at 9-11.
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. tion. It affects the arguments to be made and the likelihood that trier of fact will be sustained. The Appeal Board determined to treat the sanctions-scope issue as jurisdictional rather than as a merits issue totally without opportunity for affected parties -
- LILCO and the Staff -- to be heard. When they finally were heard (in their October 4 briefs) it became clear that they both profoundly disagree with the Appeal Board's action. This type of action substantially affects the interests of the parties; it should not be taken ex carte; the Appeal Board's doing so vio-lated LILCO's due process rights.
3.
Reasons Why the commission should Take Review The net effect of these three orders is to threaten, without legal or policy justification, a radical restructuring.of the Shoreham emergency planning proceeding.
The Appeal Board's actions raise serious legal and policy issues concerning the intent and effect of the division of complex proceedings into subdockets for administrative, or "case management," purposes,,
and of the Appeal Board's authority to alter those administrative boundaries unilaterally.
The Appeal Board's pre-emptive ouster of the OL-3 Licensing Board from the opportunity to determine its own jurisdiction over the 1988 Shoreham exercise was incorrect both procedurally and substantively: it wrongly precluded the OL-3 Licensing Board from a chance to determine its own jurisdic-tion, and overlooks the fact that emergency preparedness exer-cises are more closely related to the current plan which they implement than they are to earlier exercises based on earlier versions of the plan. And the apparent promise of its September 27 and 29 Orders -- to limit the effect of sanctions to the administrative subdockets in which they are imposed -- amends the Commission's Policy Statement on the Conduct of Administrative Proceedings and condones, if it does not legitimize, the use of shell-game tactics by parties in the very class of cirramstances
-- complex, multidocket proceedings -- where the aut.ority of l
. licensing boards to regulate parties' conduct is both the most taxed and the most necessary.
These issues have profound effects for the future of the Shoreham licensing proceeding. If the OL-3 Board is promptly sustained as to its assessment of sanctions, Shoreham could conceivably have a full power operating license within several weeks. If, on the other hand, the Appeal Board's actions keep the Licensing Board from being sustained and Intervenors are allowed to participate again in 1988 exercise litigation, delays of at least several months in completing the proceeding are virtually inevitable. If (as LILCO believes) the Appeal Board's actions are incorrect, the delay will have been totally wasteful and intense-ly damaging to LILCO.
Further, the Appeal Board's orders have profound and self-evident implications for any other plant facing litigation on an exercise or any litigant before the NRC facing the possibility of serious sanctions.
CONCLUSION For the reasons stated above, the Commission should promptly take review of ALAB-901 and of the September 27 and 29 Orders, and reverse or modify them in the following respects:
1.
The 1988 exercise litigation (if any is held) should be assigned to the licensing board with clearest knowledge of the Shoreham emergency plan, the present OL-3 Board, and the scope of the OL-3 Board's mandate expanded accordingly.
l 2.
The Appeal Board's treatment of the issue whether the OL-3 Licensing Board had jurisdiction to impose proceeding-wide sanctions should be promptly certified by the Commission for resolution; and the Commission should engage the merits as well, l
so that all parties may know whether litigation on the 1988 exercise will be required.
Respectfully submitted, W. Taylor Reveley, III~
Donald P.
Irwin James N. Christman Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O.
Box 1535 Richmond, Va. 23219 DATED:
October 5, 1988 r
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LILCO, Octobye
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b CERTIFICATE OF SERVICE
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In the Matter of I
b3 6 LONG ISLAND LIGHTING COMPANY H
(Shoreham Nuclear Power Station, Unit 1)
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C Docket No 50-322-OL
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l I hereby certify that copies of LONG ISLAND LIGHTING COMPANY'S PETIT ON FOR REVIEW OF ALAB-901 AND FOLLOW-ON ORDERS, MOTION FOR LEAVE TO EXCEED PAGE LIMIT and LILCO'S PETITION FOR REVIEW OF ALAB-900 were served this date upon the following Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
I Lando W. Zech, Jr., Chairman
- Alan S. Rosenthal
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing One White Flint North Appeal Board j
11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockv!!1e, MD 20852 East-West Towers, Fif th Floor 4350 East-West Highway Commissioner Thomas M. Roberts
- Bethesda, MD 20814 U.S. Nuclear Regulatory Commission One White Flint North Dr. W. Reed Johnson
- 11555 Rockville Pike Atomic Safety and Licensing Rockville, MD 20852 Appeal Board U.S. Nuclear Regulatory Commission i
Commissioner Kenneth M. Carr
- 115 Falcon Drive, Colthurst i
U.S. Nuclear Regulatory Commission Charlottesville, VA 22901 One White Flint North 11555 Rockville Pike James P. Gleason, Chairman
- Rockville, MD 20852 Atomic Safety and Licensing Board t
Commissioner Kenneth C. Rogers
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 513 Gilmoure Drive
}
One White Flint North Silver Spring, MD 20901 11555 Rockville Pike i
i Rockville, MD 20852 Dr. Jerry R. Kline
- l Atomic Safety and Licensing i
William C. Parlor, Esq.
- Board General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers One White Flint North 4350 East-West Hwy.
q l'
11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 Mr. Frederick J. Shon
- Christine N. ?
. Chairman
- Atomic Safety and Licensing Atomic Safet
' iconsing Board Appeal Boaru U.S. Nuclear Regulatory Commission l
U.S. Nuclear Regu ry Commission East-West Towers 1
East-West Towem, Fif th Floor 4350 East-West Hwy.
4350 East-West Highway Bethesda, MD 20814 j
Bethesda, MD 20814 l
John H. Frye, III, Chairman
- Fabian G. Palomino, Esq.
- Atomic Safety and Licensing Richard J. Zahnleuter, Esq.
Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber East-West Towers Room 229 4350 East-West Hwy.
State Capitol Bethesda, MD 20814 Albany, New York 12224 Dr. Oscar H. Paris
- Alfred L. Nardelli, Esq.
Atomic Safety and Licensing Assistant Attorney General Board 120 Broadway U.S. Nuclear Regulatory Commission Room 3-118 East-West Towers New York, New York 10271 4350 East-West Hwy.
Bethesda, MD 20814 George W. Watson, Esq.
- William R. Cumming, Esq.
Secretary of the Commission Federal Emergency Management Attention Docketing and Service Agency Section 500 C Street, S.W., Room 840 U.S. Nuclear Regulatory Commission Washington, DC 20472 One White Filnt North 11555 P,ockville Pike Mr. Philip McIntire Rockville, MD 20852 Federal Emergency Management Agency Atomic Safety and Licensing 26 Federal Plaza Appeal Board Panel New York, New York 10278 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Jay Dunkleberger New York State Energy Office Adjudicatory File Agency Building 2 Atomic Safety and Licensing Empire State Plaza Board Panel Docket Albany, New York 12223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Stephen B. Latham, Esq.
- Twomey, Latham & Shea Edwin J. Reis. Esq.
- 33 West Second Street U.S. Nuclear Regulatory Commission P.O. Box 298 One White Filnt North Riverhead, New York 11901 11555 Rockville Pike Rockville, MD 20852 Jonathan D. Feinberg, Esq.
New York State Department of Lawrence Coe Lanpher, Esq.
- Pubile Service Staff Counsel Karla J. Lotsche, Esq.
Three Rockefeller Plaza Kirkpatrick & Lockhart Albany, New York 12223 South Lobby - 9th Floor 1800 M Street, N.W.
Ms. Nora Bredes Washington, DC 20036-5891 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 I
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- Evan A. Davis, Esq.
Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wad'3g River, NY 11792 Albany, New York 12224 E. Thomas Boyle, Esq.
Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 b
Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 l
Richmond, Virginia 23212 DATED: October 5,1988
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